Cassidy Hutchinson’s testimony before the House select committee this week increased the criminal exposure former President Donald Trump faces in the Justice Department’s ongoing January 6, 2021, investigation.
Anecdotes recounted under oath by the former White House aide offer new avenues for investigators to potentially examine whether Trump tried to obstruct, conspired against or attempted to defraud the government, several experienced prosecutors-turned-defense attorneys told CNN on Wednesday.
Ty Cobb, who represented Trump in the White House during Robert Mueller’s Russia investigation, said this situation is much different than with Mueller. At the time of the Mueller investigation, Cobb believed Trump shouldn’t be charged with any crime — and the President wasn’t.
Nor did Cobb believe Mueller’s investigation was warranted. Now, that is not the case.
“Here there are many damning facts,” said Cobb, who pointed to Hutchinson’s testimony that Trump knew his supporters were armed on January 6, riled them up, then appeared to concur with them chanting to hang the vice president as worthy of prosecutors’ attention.
If that “isn’t insurrection, I don’t know what is,” he said Wednesday.
Legal experts have long viewed the US Capitol attack as one that could theoretically prompt an investigation into the Trump-era White House, even though any investigation around the presidency raises complicated issues.
So far, more than 800 rioters have been criminally charged — with a third of them admitting their guilt in federal court.
In recent months, the Justice Department investigation has broadened beyond the rioters, moving closer to the political circles around Trump.
Investigators have gathered communications and other information from fake electors the Trump campaign organized in seven battleground states he lost, from a “Stop the Steal” rally organizer, from former DOJ official Jeffrey Clark — whom Trump wanted to install as attorney general in early January 2021– and from John Eastman, Trump’s election lawyer who wanted to block Congress from certifying his loss of the presidency.
The committee has raised allegations of other potential charges, including possible witness tampering and related to Trump’s post-election fundraising.
Now, federal investigators may seek to corroborate evidence the House has presented. That may include vetting Hutchinson’s testimony with other witness who could speak to what Trump knew about the potential for violence on Capitol Hill and that his wish to stop Congress could be illegal.
“I think we crossed two important thresholds” for the consideration of charges when evaluating Hutchinson’s testimony, said Elie Honig, CNN senior legal analyst and a former federal prosecutor, on “Don Lemon Tonight” on Tuesday. “One is the violence threshold, the direct link to Donald Trump that that crowd was armed. And the other is intent. Remember early on, when the big question, the big point of dispute was, Did Donald Trump know at the time what that crowd was going to do? Did he want them to remain peaceful or did he want them to go into that Capitol angry? I mean, is there really any question about that anymore?”
Criminal investigators would have wider latitude than the House to access evidence and to interview witnesses, including some who’ve been recalcitrant toward the House. That power of federal grand juries to obtain testimony and evidence dates back to Watergate, when a federal judge allowed prosecutors access to Nixon White House tapes.
“I think everything is on the table, and this January 6 committee has done a pretty good job of showing the road map and the possibilities that existed,” Doug Jones, the former federal prosecutor and former Democratic US senator from Alabama, said on Wednesday. “We have never seen anything like this in this country. Watergate pales in comparison.”
Even if the DOJ has a case to bring, the department would face significant policy decisions, including weighing the enormous consequences of bringing criminal charges against a former President for actions he took while in office.
“There’s a piece of this that scares the hell out of me,” Jones said, adding: “We have already seen in the Congress of the United States this idea that every party wants to impeach the opposing President of the other party.”
“I worry we are at a point in this country that we are going to see every former administration that every former administration will be investigated criminally on anything like this in the country.”
Cobb, too, cautioned the type of hyper-partisan political era that charging a former President might bring — saying it could be “one more step in the erosion of our institutions.”
“I am not convinced prosecuting Trump is in the best interests of the country in the long term,” Cobb said.
After weighing the evidence, lawyers within the Office of Legal Counsel and other top levels of the Justice Department would need to analyze constitutional hypotheticals, past internal decisions and court precedents.
“How will this impact the future of the presidency? That’s the question they always ask,” said Neil Eggleston, the former White House counsel in the Obama administration. “How would a prosecution of President Trump impact the future presidency? I think those are the issues they’ll be thinking about. I think they will conclude they have no impact on the future presidency.”
There’s also the matter of free speech and political speech protections, and other defenses Trump has raised already in civil cases seeking to hold him liable for January 6.
A federal judge in Washington, DC, has already looked at the possibility of the President taking part in a conspiracy, in a civil context. Judge Amit Mehta found it was plausible.
“The President’s January 6 Rally Speech can reasonably be viewed as a call for collective action,” Mehta wrote in response to accusations brought by Democratic Rep. Eric Swalwell of California and others.
A lawyer who brought the civil conspiracy case last year said Hutchinson’s testimony this week strengthened the conspiracy argument.
“There was so much more detail about what Trump knew,” said Philip Andonian, who brought Swalwell’s lawsuit against Trump.
Trump has appealed Mehta’s ruling, arguing to an appeals court he has absolute immunity, for everything he said and did while President.
Courts have previously found the privilege protections around the presidency melt away if there was criminal action. And another judge, in a California federal court, also determined this year that Trump “more likely than not” engaged in the planning of a crime with his attorney Eastman, wiping away the confidentiality of some Trump-side attorney-client communications after the election.
“If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself,” the judge, David O. Carter, wrote, releasing some of Eastman’s emails related to his efforts for Trump to the House select committee.
Some legal scholars also say that Trump may argue he genuinely believed that the election was stolen from him, and that this good-faith belief motivated his actions to stop the transfer of power.
Experts have said former Attorney General William Barr may have bolstered Trump’s defense by testifying that Trump was “detached from reality” regarding the 2020 election. But that argument might only get Trump so far.
“You can have a good-faith belief that the earth is flat, but it doesn’t allow you to act in a criminal way,” said Michael Zeldin, another former federal prosecutor and former CNN analyst. “You can have a good-faith belief that you really won an election, but it wouldn’t give you the right to shoot senators who said that you lost.”
